Antidumping: Elemental sulphur from— Canada,

[Federal Register: September 7, 1999 (Volume 64, Number 172)]

[Notices]

[Page 48587-48589]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr07se99-29]

[[Page 48587]]

DEPARTMENT OF COMMERCE

International Trade Administration

[A-122-047]

Elemental Sulphur From Canada; Preliminary Results of Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, Department of Commerce.

ACTION: Notice of Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review of Elemental Sulphur from Canada.

SUMMARY: This administrative review covers Husky Oil, Ltd. (``Husky'') and Petrosul International (``Petrosul''). The period of review (``POR'') is December 1, 1997, through November 30, 1998.

For the reasons provided in the ``Facts Available'' section of this notice, we have preliminarily determined Husky's antidumping rate based on total adverse facts available, and have applied the highest rate calculated for Husky in prior reviews. If these preliminary results are adopted in our final results of administrative review, we will instruct the U.S. Customs Service to assess antidumping duties based on this margin.

On March 10, 1999, Petrosul informed the Department of Commerce (``the Department'') that it did not have any shipments of subject merchandise to the United States during the POR. We have confirmed this with information from the U.S. Customs Service. Therefore, in accordance with section 351.213(d)(3) of the Department's regulations and consistent with the Department's practice, we are rescinding our review for Petrosul. For further information, see the ``Partial Rescission of Review'' section of this notice, below.

Interested parties are invited to comment on these preliminary results. Parties who submit arguments in this proceeding are requested to submit with the argument: (1) a statement of the issue; and (2) a brief summary of the argument.

EFFECTIVE DATE: September 7, 1999.

FOR FURTHER INFORMATION CONTACT: Brandon Farlander or Rick Johnson, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0182 or (202) 482-3818, respectively.

Applicable Statute and Regulations

Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (``the Act'') by the Uruguay Rounds Agreements Act (``URAA''). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR Part 351 (1998).

Background

On December 8, 1998, the Department published in the Federal Register a notice of ``Opportunity to Request Administrative Review'' of the antidumping duty order on elemental sulphur from Canada (63 FR 67646). In accordance with 19 CFR 351.213(b)(1), on December 31, 1998, the petitioner, Freeport-McMoRan Sulphur, Inc. (``Freeport''), requested an administrative review of the antidumping order covering the period December 1, 1997, through November 30, 1998, for Husky and Petrosul. On January 25, 1999, the Department published in the Federal Register a notice of initiation of administrative review of this order (64 FR 3682). On February 5, 1999, Husky requested that the Department rescind the review and revoke, in whole or in part, the above antidumping order based on changed circumstances. On March 22, 1999, the Department denied Husky's request for a changed circumstances review. See Decision Memorandum: Request of Husky Oil, Ltd. to Initiate A Changed Circumstances Review of the Antidumping Duty Order on Elemental Sulphur from Canada, March 22, 1999. On April 19, 1999, Husky submitted a letter to the Department stating that it would not further respond to the Department's questionnaire (a partial response to the Department's questionnaire had been submitted on March 16, 1999), because ``it (could not) justify the time and considerable costs necessitated by full participation in this review.''

Scope of the Review

Imports covered by this review are shipments of elemental sulphur from Canada. This merchandise is classifiable under Harmonized Tariff Schedule (``HTS'') subheadings 2503.10.00, 2503.90.00, and 2802.00.00. Although the HTS subheadings are provided for convenience and for U.S. Customs purposes, the written description of the scope of this finding remains dispositive.

Partial Rescission of Review

As noted above, on March 10, 1999, Petrosul informed the Department that it had no shipments of subject merchandise to the United States during the POR. We have confirmed this with information received from the U.S. Customs Service. Therefore, in accordance with 19 CFR 351.213(d)(3) and consistent with the Department's practice, we are rescinding our review with respect to Petrosul (see e.g., Certain Welded Carbon Steel Pipe and Tube from Turkey; Final Results and Partial Rescission of Antidumping Administrative Review, 63 FR 35190, 35191 (June 29, 1998)).

Facts Available

In accordance with section 776(a)(2)(A) of the Act, we preliminarily determine that the use of facts available is appropriate as the basis for Husky's dumping margin. Section 776(a)(2) of the Act provides that if an interested party: (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782 (c)(1) and (e) of the Act; (C) significantly impedes a determination under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination. In this case, section 776(a)(2)(A) of the Act applies because Husky failed to respond to sections B, C, and D of the Department's February 16, 1999 questionnaire.

Because Husky failed to respond to significant sections of the Department's questionnaire (i.e., including submissions relating to home market sales, U.S. sales, and cost of production information), and indicated that it would not continue to participate fully in this administrative review, we preliminarily determine that, in accordance with sections 776(a) and 782(e) of the Act, the use of total facts available is appropriate. See, e.g., Certain Grain-Oriented Electrical Steel from Italy: Final Results of Antidumping Duty Administrative Review, 62 FR 2655 (January 17, 1997).

Section 776(b) of the Act provides that adverse inferences may be used with respect to a party that has failed to cooperate by not acting to the best of its ability to comply with requests for information. See Statement of Administrative Action (``SAA'') accompanying the URAA, H.R. Rep. No. 103-316, at 870. Husky's failure to participate in this review demonstrates that it has failed to act to the best of its ability and, therefore, an adverse inference is warranted. See, e.g., Extruded Rubber Thread from Malaysia; Final Results of Antidumping Duty

[[Page 48588]]

Administrative Review, 63 FR 12752 (March 16, 1998).

Section 776(b) of the Act authorizes the Department to use as adverse facts available secondary information, that is, information derived from the petition, the final determination, a previous administrative review, or any other information placed on the record. The SAA further provides that ``{i}n employing adverse inferences, one factor the {Department} will consider is the extent to which a party may benefit from its own lack of cooperation.'' SAA at 870. It is the Department's normal practice, in situations involving non-cooperating respondents such as Husky, to select as adverse facts available the highest margin from the current or any prior segment of the same proceeding. Therefore, as total adverse facts available, we have applied the rate of 40.38 percent, which was Husky's calculated final margin in the 1992/93 administrative review. See Final Elemental Sulphur from Canada; Final Results of Antidumping Duty Administrative Reviews 62 FR 37970, 37990 (July 15, 1997). The Department previously applied this rate as a total adverse facts available rate for Mobil Oil Canada, Ltd. in the 1994/95 administrative review. See Elemental Sulphur from Canada: Final Results of Antidumping Duty Administrative Review, 62 FR 37958, 37969 (July 15, 1997).

Section 776(c) of the Act provides that the Department shall, to the extent practicable, corroborate secondary information by reviewing independent sources reasonably at its disposal. The SAA provides that ``corroborate'' means that the Department will satisfy itself that the secondary information to be used has probative value, that is, that it is both reliable and relevant. See SAA at 870. The 40.38 percent rate we selected meets these corroboration criteria.

Regarding the reliability of the selected rate, because there are no independent sources for calculated dumping margins, unlike other types of information, such as input costs or selling expenses, the only source for margins is administrative determinations. Thus, in an administrative review, if the Department chooses as total adverse facts available a calculated dumping margin from a prior segment of the proceeding, it is not necessary to question the reliability of that earlier calculated margin. See, e.g., Elemental Sulphur from Canada: Preliminary Results of Antidumping Duty Administrative Review, 62 FR 971 (January 7, 1997); Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from France, et al.: Final Results of Administrative Review, 62 FR 2081, 2088 (January 15, 1997); and Final Results of Antidumping Duty Administrative Review: Brass Sheet and Strip from Germany, 64 FR 43342, 43343 (August 10, 1999). Thus, because we have selected Husky's own calculated margin from a prior administrative review, we do not need to question its reliability.

With respect to the relevance aspect of corroboration, however, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as adverse facts available, the Department will disregard the margin and determine an appropriate margin. See, e.g., Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22, 1996) (where the Department disregarded the highest margin for use as adverse facts available because the margin was based on another company's uncharacteristic business expense, resulting in an unusually high margin). In this review, the rate selected stems from Husky itself, and we are not aware of any circumstances that would render this rate inappropriate.

Preliminary Results of Review

As a result of our review, we preliminarily determine that the following margin exists for the period December 1, 1997, through November 30, 1998:

Margin Manufacturer/Exporter

(percent)

Husky Oil, Ltd

40.38

Any interested party may request a hearing within 30 days of publication of this notice in the Federal Register. Case briefs from interested parties may be submitted not later than 30 days after the date of publication of this notice in the Federal Register; rebuttal briefs may be submitted not later than five days thereafter. Any hearing, if requested, will be held 2 days after the scheduled date for submission of rebuttal briefs. Issues raised in the hearing will be limited to those raised in the case briefs. The Department will publish the final results of this administrative review, including its analysis of issues raised in any written comments or at a hearing, not later than 120 days after the date of publication of this notice.

Assessment Rate

In the event these preliminary results are made final, we intend to assess antidumping duties on Husky's entries at the same rate as the dumping margin (i.e., 40.38 percent) since the margin is not a current calculated rate for the respondent, but a rate based upon total facts available pursuant to section 776(a) of the Act.

Cash Deposit

Furthermore, the following deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of these administrative reviews, as provided by section 751(a)(1) of the Act: (1) the cash deposit rate for Husky will be the rate established in the final results of this administrative review (no deposit will be required for a zero or de minimis margin, i.e., a margin lower than 0.5 percent); (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in a previous segment of this proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recent segment; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers will be the ``all others'' rate as indicated in the final results of the 1993/94 administrative review of these orders (see Elemental Sulphur from Canada; Final Results of Antidumping Duty Administrative Reviews 62 FR 37970, 37990 (July 15, 1997)). These deposit requirements shall remain in effect until publication of the final results of the next administrative review.

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

[[Page 48589]]

Dated: August 31, 1999. Richard W. Moreland, Acting Assistant Secretary for Import Administration.

[FR Doc. 99-23214Filed9-3-99; 8:45 am]

BILLING CODE 3510-DS-P